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  • Question

    If a contract is in the 5th year but additional work is needed, can a BOA be extended beyond the 5th year by an option, or in any other way?


    Answer

    DAU consulted with a member of AT&L's Defense Procurement and Acquisition Policy (DPAP) staff who is knowledgeable on international contracting matters.  Here is the advice DPAP provided:

    BOAs are only written instruments of understanding and not a contract -- they do not bind the parties.  The orders themselves are actually the contractual instruments.  Since the BOA is not a contract, DFARS PGI 217 guidance does not apply.  As a result, the DFARS 216.703 limitations which specify that the ordering period for a BOA cannot exceed 5 years governs this situation.  Of course, an order placed under a BOA in the 5th year may have a period of performance extending beyond the 5 year ordering period; this would be acceptable.  But, if additional work beyond the original order is needed after the 5 year BOA ordering period expires, a new BOA would have to be established.  Alternatively, another contractual instrument or contract could need to be established to perform the additional FMS-related work. 

    Bottom Line:  The fact that the work is FMS-related does not influence the situation; the guidance for DoD "domestic" and FMS customer contracting under BOAs is the same. 

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